Canada's Asset Recovery Tools: A Practical Guide

Canada’s Asset Recovery Tools:
A Practical Guide
Canada’s Asset Recovery Tools: A Practical Guide
Canada’s Asset Recovery Tools:
A Practical Guide
I.
INTRODUCTION
Consistent with Canada’s support for international legal instruments such United
Nations Convention against Corruption and the United Nations Convention against
Transnational Crime, Canada is committed to working with the global community to fight
serious criminality, including corruption. States must work together to ensure that those
who try to use international borders to evade justice and to hide the fruits of their
criminality are not permitted to do so. Canada recognizes that robust tools of
international cooperation are vital to preserving peace and security at home and abroad
including with respect to asset recovery and the sharing of criminal proceeds.
For these tools to be effective however, States must have a clear and concise
understanding of the legal and procedural requirements for obtaining the required
assistance.
The following provides a practical overview of the process in Canada for seeking the
freezing, restraint, seizure, forfeiture/confiscation and sharing of criminal proceeds. In
addition, it provides the relevant contact points in Canada to allow for efficient
consultation with Requesting States.
For more detailed information on Canada’s mutual legal assistance process, States are
encouraged to refer to the G8 Step-by-Step Guide on Mutual Legal Assistance which
may be accessed at: http://www.coe.int/T/dghl/standardsetting/pcoc/PCOC_documents/8_MLA%20step-by-step_CN152011_CRP.6_eV1182196.pdf.
The G8 Step-by-Step Guide on Mutual Legal Assistance is also available in French and
Arabic through the Canadian Central Authority. See contact information below.
II.
OVERVIEW OF PROCEDURE FOR SEEKING THE FREEZING OF ASSETS
OF CORRUPT GOVERNMENT OFFICIALS
Under the Freezing Assets of Corrupt Foreign Officials Act (FACFOA), the Government
of Canada may issue orders or regulations that freeze the assets or restrain property1 of
a foreign state’s former leaders and senior officials if the following preconditions are
met:
1. The foreign state asserts in writing to the Government of Canada that a
person has misappropriated property of the foreign state or acquired property
inappropriately by virtue of their office or a personal or business relationship.
1
Property is understood to mean any real, personal, movable or immovable property.
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2. The written assertion asks the Government of Canada to freeze property of
the person.
3. The circumstances associated with the request demonstrate to the
Government of Canada’s satisfaction that:
•
the person is, in relation to the foreign state, a politically exposed
foreign person 2;
•
there is internal turmoil, or an uncertain political situation, in the foreign
state; and
•
the making of the order or regulation is in the interest of international
relations.
If these conditions are met, the Government of Canada may issue an order or regulation
that lists and designates the person in question as someone with whom Canadians may
not engage in the following activities, whether carried out in or outside Canada:
•
the dealing, directly or indirectly, in any property, wherever situated, of a listed
politically exposed foreign person;
•
the entering into or facilitating, directly or indirectly, any financial transaction
related to a dealing, directly or indirectly, in any property, wherever situated,
of a listed politically exposed foreign person; and
•
the provision of any financial services or other related services in respect of
any property of a listed politically exposed foreign person.
In addition to restricting and prohibiting dealing with the properties of corrupt foreign
officials, their associates and their family members, FACFOA further provides that
Canadians and financial entities must disclose to the Royal Canadian Mounted Police
2
For greater certainty, a “politically exposed foreign person” is defined under FACFOA to mean
a person who holds or has held one of the following offices or positions in or on behalf of a
foreign state and includes any person who, for personal or business reasons, is or was closely
associated with such a person, including a family member:
(a) head of state or head of government;
(b) member of the executive council of government or member of a legislature;
(c) deputy minister or equivalent rank;
(d) ambassador or attaché or counsellor of an ambassador;
(e) military officer with a rank of general or above;
(f) president of a state-owned company or a state-owned bank;
(g) head of a government agency;
(h) judge;
(i) leader or president of a political party represented in a legislature; or
(j) holder of any prescribed office or position.
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whether they have property possession or control of property of person who is the
subject of an order or regulation. As such, property associated with a politically
exposed foreign person can be identified and frozen at the request of the foreign state
on an ongoing basis for the duration of the order or the regulation, which is five years
with the possibility of renewal.
While FACFOA does authorize the Government to seize property, seizure cannot occur
unless the property is identified as a proceed of crime. As described above, however, it
is not necessary to establish that the property is a proceed of crime in order for it to be
frozen under FACFOA. Rather, the freeze ensures that the property remains in Canada
to give the foreign state the time it needs to pursue its investigations and gather
evidence to support a formal request for the seizure and forfeiture of such assets. For
more detailed information, States are encouraged to review the Act and its regulations
at http://laws-lois.justice.gc.ca/eng/acts/F-31.6/index.html.
III.
OVERVIEW OF PROCEDURE FOR SEEKING RESTRAINT, SEIZURE AND
FORFEITURE/CONFISCATION FROM CANADA
A foreign State may seek restraint, seizure and forfeiture/confiscation of criminal
proceeds from Canada in one of two circumstances:
1. By making a mutual legal assistance request to Canada seeking the enforcement
of a restraint, seizure or forfeiture/confiscation order issued by a court of criminal
jurisdiction in the requesting State; or
2. By requesting that Canada pursue a domestic proceeds of crime investigation.
a.
Mutual Legal Assistance Process
i. Restraint and Seizure under section 9.3 of the Mutual Legal
Assistance in Criminal Matters Act
A foreign State may seek the restraint or seizure of criminal proceeds or offence-related
property from Canada if the following preconditions are met:
1. The request is made by (1) a treaty partner; (2) a state or entity designated in the
Schedule to Canada’s Mutual Legal Assistance in Criminal Matters Act; or (3) by
a state or entity with which Canada has entered into an administrative
arrangement;
2. The request is made in writing to the Minister of Justice of Canada;
3. The request seeks the enforcement of an order for restraint or seizure of property
situated in Canada;
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4. The request includes a copy of the restraint/seizure order issued by a court of
criminal jurisdiction in the requesting State;
5. The person to whom the property relates is charged with a criminal offence in the
requesting State; and
6. The foreign offence with which the person is charged would be an indictable
offence (i.e. serious offence/felony) under Canadian law had the conduct been
committed in Canada (dual criminality requirement).
ii. Forfeiture/Confiscation under section 9.4 of the Mutual Legal
Assistance in Criminal Matters Act
A foreign State may seek forfeiture/confiscation of criminal proceeds or offence-related
property from Canada if the following preconditions are met:
1. The request is made by (1) a treaty partner; (2) a state or entity designated in the
Schedule of Canada’s Mutual Legal Assistance in Criminal Matters Act; or (3) by
a state or entity with which Canada has entered into an administrative
arrangement;
2. The request is made in writing to the Minister of Justice of Canada;
3. The request seeks the enforcement of a forfeiture order issued by a court of
criminal jurisdiction in the requesting State and includes a copy of the order;
4. The person to whom the property relates must be convicted of a criminal offence
in the requesting State and no further appeals of the conviction are possible; and
5. The foreign offence on which the person was convicted would be an indictable
offence (i.e. serious offence/felony) under Canadian law had the conduct been
committed in Canada (dual criminality requirement).
iii. Grounds of Refusal/Postponement of Request for the
Enforcement of Restraint and Seizure Orders
Minister of Justice of Canada shall refuse a request for the enforcement of a restraint or
seizure order if any of the above preconditions are not met. As noted above, dual
criminality is a prerequisite to Canada’s cooperation in such matters.
Minister of Justice of Canada may refuse a request for the enforcement of a restraint or
seizure order if it would be contrary to the public interest, e.g. the property is the subject
of a Canadian proceeds investigation or prosecution. (Reference: Canada’s mutual
assistance treaties).
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Minister of Justice of Canada may postpone a request for the enforcement of a restraint
or seizure order if it is in the public interest to do so, e.g. immediate execution would
interfere with an ongoing Canadian investigation or prosecution. (Reference: Canada’s
mutual assistance treaties).
iv. Grounds of Refusal of Request for Forfeiture/Confiscation
The Minister of Justice shall refuse a request to enforce a foreign forfeiture order if the
above preconditions are not met (including the double criminality requirement). In
addition, the Minister shall refuse a request in the following circumstances:
•
There are reasonable grounds to believe that the request is made to punish a
person on one or more listed grounds of discrimination, e.g. race, nationality,
age, political opinion;
•
Enforcement would compromise an ongoing Canadian proceeding or
investigation;
•
Enforcement would “impose an excessive burden on the resources of federal,
provincial or territorial authorities” in Canada;
•
Enforcement might prejudice Canada’s security, national interest or sovereignty;
or
•
Refusal of request is in the public interest.
v. Nexus Must Exist between the Foreign Offence and the Canadian
Property as Proceeds of Crime
A request to Canada that seeks the enforcement of a restraint, seizure or
forfeiture/confiscation order must clearly outline the basis to believe that the Canadian
property constitutes the proceeds of the foreign criminal offence or offence-related
property.
It is not sufficient to simply state that the property is criminal proceeds or offence-related
property. Evidence to substantiate this allegation is needed. For example, the
requesting State must provide an outline of the evidence that shows that the funds in a
specific Canadian bank account emanates from the corruption offence for which the
person was charged or convicted.
vi. Specific Canadian Property/Assets Must be Identified
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The request for assistance and the foreign order of restraint, seizure or
forfeiture/confiscation must clearly identify the Canadian property that is believed to
constitute criminal proceeds or offence-related property. In other words, the restraint,
seizure or forfeiture order must pertain to property that was determined by the court of
criminal jurisdiction of the requesting state to be the proceeds of crime or offencerelated property.
It is not sufficient to refer to general property or assets situated in Canada, e.g. all bank
accounts in the name of the accused or convicted person; all real estate held by the
accused or convicted person in Canada.
vii. Canadian Legal Process for Executing Requests for Restraint,
Seizure and Forfeiture/Confiscation
If the Minister of Justice approves the execution of a request, Ministerial Authorization is
issued to the Attorney General of Canada to make arrangements to enforce the foreign
order.
Counsel for the Attorney General of Canada, on receipt of the Ministerial Authorization,
may file the order with the Superior Court in the province in which the property is
located.
On being filed, the order is entered as a judgment of that court and may be executed
anywhere in Canada.
With respect to requests to enforce forfeiture/confiscation orders, notice must be given
to persons who, in the opinion of the Canadian court, have a valid interest in the
property to be forfeited before the order may be executed against the Canadian
property.
viii. Non conviction based asset forfeiture
In contrast to criminal asset recovery, non-conviction based (NCB) asset forfeiture, also
known as civil forfeiture enables governments and the victims of crime to recover illegally
acquired assets from an individual or an entity through a direct action against their
property without the requirement of a prior criminal conviction of the defendant. Due to
Canada’s constitutional division of powers, however, the Government of Canada cannot
respond to a request for NCB asset forfeiture as such requests fall within the jurisdiction
of Canada’s provinces. As such, should a foreign state seek to recover assets from
Canada though NCB asset forfeiture, it must hire private counsel to act on its behalf in
the province where the property is located.
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b. Canadian Proceeds of Crime Investigation
In cases where the requirements of Canada’s Mutual Legal Assistance in Criminal
Matters Act cannot be met, a request for restraint, seizure or forfeiture/confiscation may
be referred to the Royal Canadian Mounted Police (RCMP) to assess whether the
foreign request provides a basis to commence a Canadian investigation for possession
of proceeds of crime or offence-related property. In these cases, the Canadian police
would review the evidence provided by the Requesting State to determine whether
there has been a violation of Canada's criminal law and whether Canadian charges
should be laid.
If a Canadian investigation was commenced on this basis and property is identified as a
proceed of crime by the RCMP, the Attorney General may apply to the courts to obtain
an order under Canada’s Criminal Code to prohibit any person from disposing of, or
otherwise dealing with any interest in, the property specified in the order otherwise than
in the manner that may be specified in the order. In turn, if it is established by a
Canadian court that the property is a proceed of crime and that an offence was
committed in relation to that property, the court shall order that the property be forfeited
to the Government of Canada to be disposed of as the Attorney General directs or
otherwise dealt with in accordance with the law. This way, Canada can separate
criminals from their illicit assets by invoking domestic law and return them to their
legitimate owners as appropriate.
The RCMP may only consider commencing a Canadian proceeds investigation if:
1. The assets to be restrained/frozen are identified; and
2. There is evidence linking the Canadian assets to an alleged criminal offence in
Canada or the foreign state. There must be evidence that the Canadian assets
are the proceeds of crime or offence-related property.
3. The time from the commission of the crime and the accumulation of assets
coincide.
IV.
OVERVIEW OF PROCEDURE FOR ASSET SHARING
In accordance with its domestic law, Canada fully supports the implementation of
Chapter V of the United Nations Convention against Corruption, which recognizes
cooperation and assistance between States Parties as a fundamental principle with
regard to the return of assets to its legitimate owners.
In accordance with article 59 of the United Nations Convention against Corruption,
Canadian law requires that there be a formal asset sharing agreement with a foreign
state before any assets can be returned or disposed of to a foreign state. In this
respect, section 11 of Canada’s legislation, The Seized Property Management Act,
provides that the Attorney General of Canada, with the approval of the Governor in
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Council, may enter into a reciprocal asset sharing agreement with the government of a
foreign state in order to return assets to the foreign state. Sections 3 & 4 of the Forfeited
Property Sharing Regulations, which apply to such agreements, further provide that no
sharing under the Seized Property Management Act and these Forfeited Property
Sharing Regulations shall take place with the government of a foreign state unless the
government of that foreign state has entered into an agreement pursuant to section 11
of the Seized Property Management Act. In turn, the agreement with the government of
a foreign state, shall:
o provide that sharing will be between the Government of Canada and the
government of that foreign state;
o provide that the sharing of the proceeds of disposition of property in
Canada and the sharing of fines in Canada will be in accordance with the
Regulations;
o provide that there will be no conditions in respect of the use of any
moneys received under the agreement; and
o state the title of the official to whom the amount of any share is to be paid
and sent or provide that a central authority will designate to whom the
amount of any share is to be paid and sent.
In accordance with article 57(4) of the United Nations Convention against Corruption,
Canada shares property with the requesting state in manner that recognizes deductions
for reasonable expenses incurred in investigations, prosecutions and judicial
proceedings leading to the return or disposition of confiscated property. To this end,
the Forfeited Property Sharing Regulations provide that Canada shall return or dispose
of confiscated property using percentage based asset sharing formulae that recognize
the value of Canada’s contributions towards achieving the return or disposition of the
property against the value of the property itself. This is done on a diminishing value
basis such that the value of Canada’s contribution that may be deducted from the value
of the property can be 90% for predominant contributions, 50% for significant
contributions and 10% for minimal contributions.
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V.
POINTS OF CONTACT IN CANADA
a.
Contact on Freezing Assets of Corrupt Government Officials
In Canada, requests to freeze the assets of corrupt government officials must be made
to the Canadian Department of Foreign Affairs and International Trade through the
following contact point:
Criminal, Security and Diplomatic Law Division
Legal Affairs Bureau
Department of Foreign Affairs and International Trade Canada
Lester B Pearson, Tower C
125 Sussex Drive
Ottawa, ON, K1A 0G2, Canada
Telephone: + 011 44 613-944-0870
Fax: + 011 44 613-944-0870
Email: [email protected]
b.
Contact on Requests for Mutual Legal Assistance
All requests for mutual legal assistance in criminal matters, including those seeking the
restraint, seizure, forfeiture/confiscation and sharing of criminal proceeds are submitted
to the Canadian Central Authority, the International Assistance Group at the Department
of Justice Canada. The contact information is provided below:
International Assistance Group
Litigation Branch, Criminal Law Division
Department of Justice Canada
284 Wellington Street, 2nd Floor
Ottawa, ON, K1A 0H8
Telephone: + 011 44 613-957-4832
After hours number: + 011 44 613-851-7891
Fax: + 011 44 613-957-8412
Email: [email protected]
In addition, Canada has a liaison official in Brussels to facilitate the processing of
mutual legal assistance requests from countries in Europe, and a liaison official in Paris
to assist in the processing of requests to and from France. Their contact information is
as follows:
Counsellor of International Criminal Operations
Canadian Mission to the European Union
Avenue de Tervuren 2
1040 Brussels, Belgium
Telephone: + 32 (0)2 741 07 71
Fax: + 32 (0)2 741 06 29
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Counsellor of International Criminal Operations,
Canadian Embassy
Paris, France
Tel: + 33-(0)1-4443-2308;
Fax: + 33-(0)1-4443-2995
c.
Contact on Asset Sharing
Requests to share forfeited criminal proceeds are made to the Canadian Department of
Justice. The contact point is as follows:
Elaine Krivel, Q.C.
General Counsel
Department of Justice Canada
130 King Street West, # 3400
Toronto, Ontario M5X 1K6
Canada
Tel: 416-973-9648
Fax: 416-973-4328
E-mail: [email protected]
VI.
References
For more information about the Canadian laws and legal measures discussed in this
guide, you are encouraged to consult the following websites:
•
Department of Justice Canada’s Justice Law Website
o http://laws-lois.justice.gc.ca/eng/
•
Department of Foreign Affairs and International Trade Canada
o http://www.international.gc.ca/sanctions/index.aspx?view=d
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